What are the benefits and requirements of a Prenuptial Agreement ?

A Prenuptial Agreement (or “prenup”) is a contract between between a couple before they marry. In New York, a prenup is only valid if it is signed prior to marriage. A prenup determines what will happen to certain assets, property, debts, and other items such as alimony in the event of legal separation or divorce. A prenup can be extremely useful because it provides the married couple with brightline rules over the division of separate and marital property without lengthy and costly court intervention. In the absence of a prenup, all marital property, or property acquired during the marriage, is subject to equitable distribution which is fair but not necessarily equal distribution based on a variety of factors. Further, without a prenup, the surviving spouse has a right of election to a substantial forced share of the deceased spouse's estate.

In New York, courts generally enforce prenuptial agreements, so long as both parties have entered into the contract voluntarily, without fraud or duress and that they are signed and notarized by both parties prior to the marriage. It is critical that both spouses have independent representation under the prenuptial agreement even though the more moneyed spouse may provide for the legl counsel of the less moneyed spouse. The cornerstone of a valid prenuptial agreement is full, accurate, and timely disclosure of all assets and liabilities: spouses do not need to share equally but they must fully and honestly disclose. Thereafter, the spouses' attorneys negotiate and resolve any open items under the prenuptial agreement and make sure that it is not unconscionable in nature.